America's Unwritten Constitution: The Precedents and Principles We Live By (8 page)

Thus, the First Amendment is not the ultimate source of the Constitution’s limits on state censorship. But surely nothing in that amendment insulates state speech regulation from federal oversight if such oversight is
authorized by other clauses or by the Constitution as a whole. Members of Congress—and by extension, other agents of the federal government—are prohibited from
abridging
free expression, but not from
protecting
it.
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THERE IS ANOTHER FREE-SPEECH CLAUSE
in the Constitution that deserves our attention as we ponder the fate of our imaginary Representative Abraham. Though the original Constitution contained no clause explicitly affirming the rights of ordinary citizens to speak and publish freely, it did guarantee, in Article I, section 6, that “Senators and Representatives… shall not be questioned” outside Congress for “any Speech or Debate in either House.” Thanks to this clause, no government entity (except the House of Representatives itself, pursuant to its own internal disciplinary rules) could ever punish, tax, hold liable, or otherwise obstruct a House member for a House speech. In performing its vital function as America’s preeminent debating society and policy-making forum, Congress could never be muzzled by the federal courts, by the president and his minions,
or by state legislatures, state executives, or state courts
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In safeguarding congressional speech from state censorship, this clause built squarely on foundations laid by the Articles of Confederation, which had similarly provided that “[f]reedom of speech and debate in congress shall not be impeached or questioned in any Court, or place out of Congress.” The main objective of this precursor clause was to protect congressional speech from state-law interference—an objective that lived on in the later language of the Constitution. If anything, the need to protect congressional speech from state assaults was even greater in a document designed to make the new Congress far more independent of states than the old Congress had been.

The stunningly broad immunity that this clause gave to congressional speech surpassed the protection that the First Amendment afforded to ordinary citizen speech. Even if a representative on the House floor intentionally spewed malicious falsehoods about some hapless citizen, the speaker was nonetheless shielded from the ordinary defamation laws applicable to ordinary speakers. No criminal prosecution, state or federal, could ever be brought against a representative even when a floor speech
had been designed to incite and had in fact incited immediate lawless violence, or had spilled military secrets in wartime.

Counterbalancing this extraordinary breadth and absolutism of protection were several notable limits in Article I, section 6. First, only sitting congressmen—political leaders who had won widespread respect and cleared high electoral hurdles—could claim this privilege. Second, Congress itself had broad authority to prevent improper speech from taking place on the floor. Parliamentary rules of order and decorum could be invoked to cut off an abusive or irresponsible speaker—in midsentence, if necessary. Third, Congress could punish miscreant members after the fact, with sanctions ranging up to temporary imprisonment in the Capitol and expulsion from Congress.

Although the letter of the Article I speech clause confined itself to congressional utterances within the Capitol, the spirit of the clause radiated more broadly. Given that the fictional Lincoln Abraham would have been untouchable by North Carolina had he simply addressed his colleagues, his constituents, and his fellow Americans from the House floor, it would be odd to think that he should lose protection merely because he made it easier for his far-flung audience to hear his ideas. Surely the right to hear what was actually said on the floor of the people’s House should not be limited to those Americans who happened to live in or close to the District of Columbia. Had Abraham first delivered his speech in the House and then merely repeated it verbatim in his district and in his pamphlet, a strong case could be made for absolute protection of his mere repetition and republication.
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But let’s suppose that our imaginary Abraham was not merely repeating in his district and in his pamphlet words that he had first uttered in the House. Although Abraham would then fall outside the particularly absolute version of freedom of speech built into the congressional free-speech clause, he could still lay claim to the basic free-speech right of all Americans: the right to voice his nonviolent, nondefamatory political opinions to any citizen willing to listen, a right implicit in the very structure of the Constitution.

HERE, AT LAST,
we reach the heart of the matter. The entire Constitution was based on the notion that the American people stood supreme over government officials, who were mere servants of the public, not masters over them. Under first principles of popular-sovereignty theory and principal-agent law (which governs, for example, employer-employee relations), it was improper—not to mention impudent—for mere public servants in either the federal or the state governments to prohibit their legal masters, the sovereign citizenry, from floating political opinions and weighing political proposals among themselves. The voters had an inalienable right to voice and hear nonviolent, nondefamatory criticisms of (and apologies for) incumbent legislators, state and federal, and also had a foundational right to voice and hear vigorous arguments about legal institutions such as slavery and legal reforms such as abolition. The entire structure of the American system presupposed these rights.
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The federal system also presupposed that Illinois speakers had a right to communicate with willing listeners in North Carolina, who in turn had a right to import this speech from out of state, just as they had a right to other forms of interstate commerce. No state official could unilaterally bar this commerce in ideas and opinions. Nor could Congress have “properly” prohibited this species of interstate commerce, even prior to the adoption of the First Amendment, whose free-expression language was largely declaratory, adding textual emphasis to a principle already evident in the Constitution’s basic structure.

Indeed, in deciding whether to ratify the Constitution in the late 1780s, the American people held a year-long continental conversation among themselves that featured remarkably robust and uninhibited interstate political speech and publication free from any notable government censorship, even though much of the expression was sharply critical of existing governmental authorities and legal institutions (including slavery). Even before the First Amendment, the very act of constitutional ordainment itself gave legal validity to a robust right of political expression. Without such a right, the Constitution might never have come into existence, and the people’s vaunted right to alter or abolish government might have become a grim joke rather than a proud reality.

We shall return to this issue in the next chapter, where we shall more systematically analyze various unwritten elements that were part of the very process by which the people ordained, and, later, amended, the written Constitution. For now, it is worth emphasizing that nothing in the strong antislavery words uttered by our hypothetical Lincoln Abraham differed in any relevant way from passionate utterances that occurred abundantly and without legal repression during the great constitutional conversation of 1787–1788.

WE HAVE PLAYED LONG ENOUGH
with the imaginary Lincoln Abraham. Let us now confront the flesh-and-blood Abraham Lincoln. To what extent could a Lincoln-hating slave state—say, North Carolina—have lawfully obstructed the president in the early days of his administration by trumping up criminal charges against him and demanding that he immediately come south to face trial? With this hypothetical—our last one in this chapter—we shall see once again the need to read each constitutional clause in the context of the document as a whole.

HAD NORTH CAROLINA
simply indicted Abraham Lincoln for the political opinions put forth in his speeches and publications, the president could of course have claimed the same inalienable rights of expression enjoyed by our hypothetical Lincoln Abraham or any other citizen. But let’s suppose that North Carolina instead cooked up charges that did not on their face arraign the president merely for his political opinions. Imagine, for instance, a grand jury indictment charging that Lincoln had secretly conspired to incite bloody slave uprisings and the mass murder of innocents by sending arms, ammunition, and funds to John Brown and his fanatic partners in crime.
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No provision of the Constitution explicitly shields a sitting president from state criminal prosecution—or from state imprisonment upon conviction, for that matter. Also counseling against presidential immunity is our old friend, the argument from negative implication. As we have already seen, Article I, section 6, does explicitly shield senators and representatives
from state (or federal) lawsuits based on their floor speeches. That section also shields congressmen from certain civil-litigation tactics involving physical arrests—arrests that might improperly prevent the targeted lawmakers from attending Congress. No comparably worded clause of the Constitution expressly protects the president from state (or federal) litigation that might intrude upon the proper performance of his duties. According to the negative-implication argument, when the Founders meant to create special shields for federal functionaries, they did so explicitly. On this logic, a sitting president must face a jury of his peers just like the rest of us.

Perhaps—but only if this result makes sense of the document as a whole and its deep structures and principles. After all, the argument from negative implication is itself only an implication. No explicit constitutional clause says that Article I, section 6, enumerates the only constitutional immunities deserving of recognition. No explicit constitutional clause says that “the president shall enjoy no privileges or immunities save those expressly enumerated.” On the contrary, Article II begins, sweepingly, by vesting the president with “[t]he executive Power” of the United States. As a textual matter, the question is whether immunity from a state criminal proceeding (and from potential state imprisonment) should be understood as an implied component of federal “executive Power.” The argument for reading immunity into this Article II phrase is hardly a wild textual stretch: It may be rather difficult (to put it mildly) for a president to fulfill the many and varied duties of his office from a state criminal courtroom or a state prison cell.

True, the president’s immunity was not textually specified to the same degree as was Congress’s. The framers may well have felt a special need to mark the contours of congressional immunities in black and white because as a practical matter the protection of these immunities would be committed to the other two branches in ordinary law enforcement and adjudication. Whatever implicit immunities were appropriate for those other branches, the framers might have assumed, would be effectively self-enforcing and hence needed little textual reinforcement. Presidents armed with the federal executive power could simply use their executive muscles to resist improper state arrest warrants and the like issued against them;
and federal judges could similarly protect themselves from pesky litigation by simply refusing to entertain certain improper federal-court suits and by reversing meddlesome state-court judgments.
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Federal courts over the centuries have done just that, holding repeatedly that no federal judge may be sued under state defamation law for any utterance in a judicial opinion—in effect recognizing a judicial freedom of speech in a federal court remarkably similar to the congressional freedom of speech in the Capitol.

Remarkably similar except, of course, for the fact that the judicial immunity is entirely an implication from the Constitution’s general structure, whereas the congressional immunity is explicit in the Constitution’s text. Much as Ellsworth, Wilson, and Blackstone argued that certain well-settled background principles of the rule of law went without saying, so, too, the Supreme Court has insisted that judicial free speech is an implicit element of the basic Anglo-American system of law. As the Court explained at the turn of the twentieth century,

       
a series of decisions, uniformly to the same effect, extending from the time of Lord Coke to the present time, established the general proposition that no action will lie against a judge for any acts done or words spoken in his judicial capacity in a court of justice.…“This provision of the law is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences.”
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Granted, no federal judge or congressman enjoys blanket immunity from state criminal prosecution. Neither does any cabinet officer; nor does the vice president.
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If any of these federal figures becomes the victim of a state criminal-law vendetta, he must ultimately rely on federal courts
to protect him. In some situations, the trial itself, though based on state criminal law, may properly be removed from a state to a federal courthouse because a federal officer stands accused. In other situations, the Supreme Court may simply review and reverse any state-court conviction obviously based on state discrimination against federal officials.
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The presidency, however, is constitutionally unique. Here, the power of an entire branch of the federal government centers in one man. (This is the plain meaning of the above-noted opening clause of Article II.) Congress can operate at full speed even if an indicted or imprisoned member is absent. So can the federal judiciary. Cabinet secretaries exist mainly to help the president himself and can be temporarily replaced by undersecretaries. Effective substitutes for the vice president are also easy to find; the VP’s main constitutional duty is to preside over the Senate, and in his absence this chair can be filled by a senator. Article II, by dramatic contrast, revolves around one man who is expected at all times to be at the ready to do whatever may be needed at a critical moment to keep the nation afloat and on course. When the president is told that he must—upon pain of imprisonment—appear at a particular state criminal hearing at a particular place and time, the executive branch itself is being held hostage, perhaps at an hour of national danger when even a small distraction may spell national disaster. Not only is the president unable to devote his entire attention to the business of the American people, but someone other than the president—some local judge or local prosecutor or local jury, perhaps with pretextual or partisan motives—is usurping the authority to define the national executive agenda.
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